The debate about same-sex “marriage” is a quintessential example of competing values. In some ways it is almost a textbook example of the competition among politics, ethics, morality, and religion.
The gay rights movement did not start in 1982, but for our purposes we reached a significant Canadian milestone in that year. Parliament passed the Charter of Rights and Freedoms in 1982. The justice minister of the day (Jean Chrétien) was asked repeatedly by Svend Robinson and others to include sexual orientation in the charter as a prohibited ground for discrimination.
Once the Charter of Rights and Freedoms came into existence, Canada acquired a new set of political actors. The courts of Canada received into their hands a wonderful tool to shape Canadian society in profound ways. And these judges are not value-free. They too come from ethical, moral, and faith bases.
They are also very political. The question that arises, though, is where do justices of the Supreme Court of Canada get their values? In part, the justices get their values from the body of law developed in Canada or elsewhere over generations, and beyond that from the British common law tradition developed over centuries by a country from which Canada draws many of its traditions and institutions. We quite explicitly ask them to start from that point, and we make them, as a branch of good governance, responsible for assuring a balance between continuity with the established laws and innovation when there are new circumstances. They are also informed by their personal set of circumstances. Judges are not value-free or impartial.
The opening that judges use to access the shaping of society is section 15 (1) of the charter, which prohibits discrimination:
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” (Italics supplied.)
Once you’ve found discrimination, you’re in the door, and the onus shifts to the government to justify the discrimination under the terms of section 1: “reasonable limits . . . in a free and democratic society.”
In the words of Janet Somerville, former general secretary of the Canadian Council of Churches and associate editor of the Catholic New Times newspaper, in her letter to Bill Graham, MP: “If we take the opposite-gender dimension out of marriage, what do we have left? Well, in the new definition proposed for the Supreme Court’s consideration, we will still have the element of free personal choice—the choice of two persons to live in ‘union’ with each other. And in popular opinion (though not in law, since law cannot command love), you will still have love. What love means, alas, is no longer very clear in modern Western societies. Does love have the profound, sacrificial, self-transcending, creation-affirming meaning that it has in Jewish and Christian religious traditions—for example, in the thirteenth chapter of Paul’s letter to the Corinthians? Or does ‘love’ now refer to the sizzle that comes (and goes) with mutual sexual attraction? If the latter is what is meant, then there is not much left of the traditional institution of marriage. If the meaning of marriage has been whittled down to mutual free choice and mutual sexual attraction, then why should it exclude gays and lesbians who love each other?
“Indeed marriage is built on love: love between a man and a woman, love of the children of that couple, and loving loyalty to grandparents, in-laws, cousins, uncles/aunts, and all the connections into past and future that come with an institution which is about welcoming and nurturing a new generation of human beings into family life. Traditional marriage is an institution that carries a great deal of the weight of human life in society: not just personal faithfulness and mutual pleasure, but the expectation that new human life will be welcomed, named, and nurtured to responsible adulthood. Heterosexual marriage has a biological foundation in a natural resource that is crucial for any society’s future: that natural resource is human fertility. Heterosexual marriage integrates the great ‘green’ biological gift of fertility with interpersonal love and with long-term social responsibility. Because of its deeply natural connection with responsibility for young life, marriage requires commitment, time, hard work, loyalty, truth, etc. And marriage requires long-term support and respect from the society into which it is bringing new children.
“When you take opposite gender out of the definition of marriage, you have taken away a great deal of the social and public importance of marriage. If it’s only about free mutual choice and faithfulness, and not at all about the willingness to become parents together, how is it different from all the interdependent relationships that are possible in life—a mother and daughter who live together, for example, or two old celibate friends, or an eccentric scientist and his or her housekeeper? When marriage was a heterosexual institution, society was collectively prepared to defer to it as the one institution that is foundational to society and its continuation. The new definition (‘two persons’) is no longer foundational, and so the reasons for excluding all those other kinds of mutually dependent relationships would appear no longer valid. Why not call them marriages as well? And then, what is left of the meaning of the word?”
Everyone has a religion, in the broad sense in which religion means “that which is of ultimate importance to a person.” The judges have a religion, and likewise, the politicians; indeed, even the academics do.
In that sense, those who argue in favor of same-sex “marriage” speak from a “religious” base. The charter is the scripture, judges are the priests, law school their theological institutes, and law texts their sacred writings.
By electing nondiscrimination as their core principle, they have elevated the “right to choose” above all else. Rabid individualism trumps the communal virtues required to make a society work.
“The different ways of ‘life’ (individualisms) that we see around us are in fact often ways of death.”
What are those ways of death? Think particularly of the ideologies of individualism and materialism. The brand of individualism we encounter today promotes material gain as the normative primary objective. It proclaims: “Never mind the needs of others; never mind the legitimate needs and rights of the wider society. My needs, my wants, my demands, come first. Forget about everybody else’s!” This type of ideology, when lived out in the context of a marriage, is a surefire marriage killer.
Ironically, one of the ways this rabid individualism triumphs is by marginalizing “other religions” and defining the public space as “secular.” How many times have we heard that “religious” people must keep their faith private and out of the public sphere? It is a particularly devastating argument for people who are attached to a particular faith group. “Religious people” are to do whatever it is they do on Friday/ Saturday /Sunday, but for heaven’s sake, keep it quiet and out of the public domain. Immediately people of faith are marginalized and excluded from shaping society’s direction. They become apologetic when speaking from a sacred text. Once you have marginalized the opposition, you will win the argument by default. Your ideas may be quite goofy, or they may even promote, as my friend Gerry Vandezande says, “the ways of death,” but they will prevail.
To the extent that you privatize the gospel (faith), you secularize public debate. Privatization, then, leads to secularization. “If allowed to go unchecked, secularism reduces life to individual choice, material gain, and ‘non-religious’ thought. It ignores the integrity of human community and the reality of faith at work in our society. It is a shallow, reductionistic view of life that violates the . . . message of the gospel and the organic unity of humanity created in the image of God. It undermines any but its own view of spirituality of life.” In the same-sex “marriage” debate, brave is the citizen who says, “But the Bible says . . .”
Professor John Witte, in his Parliament Hill lecture “Religion, Secularism and Human Rights,” made a very critical point in suggesting that “without religion, the regime of human rights becomes infinitely expandable. The classic faiths of the Book adopt and advocate human rights to protect religious duties. A religious individual or association has rights to exist and act not in the abstract, but in order to discharge discrete religious duties. Religious rights provide the best example of the organic linkage between rights and duties. Without them, rights become abstract, with no obvious limit on their exercise or expansion.” His point is that religion creates a context for rights. It provides a needed balance in the rights dialogue. It outlines the duties and responsibilities that balance each other. He argues that religion acted as the midwife of the rights movement but has since been marginalized, in part, because a rights culture has not been part of the theological discourse and teaching. I am convinced that he is right.
The same-sex “marriage” debate is framed almost entirely in rights language. Other analyses, equally valid if not more so, are deemed to be speculative. To mount a social utility argument on the efficacy of heterosexual marriage to a society is ipso facto deemed to be irrelevant. Legislators and jurists are not interested in the sociology of marriage, let alone the theology. The web of interconnectedness that is the institution of daily life is immaterial to a jurist focused solely on rights. “Yet religion (faith) is at the heart of a person or an institution’s existence.” Cut out the heart, and you no longer have a person or an institution. I would suggest that cutting the gender completely out of marriage cuts out its heart. To argue that the elimination of gender from the institution is risk-free or value-neutral is disingenuous to the extreme.
This intellectual sophistry, which conflates equality and sameness, may give comfort to some small “l” liberals, but it is really a failure in inclusive pluralism. If we in Canada are to have a real understanding of pluralism, one size will not fit all. People are different–relationships are different. Poking and jamming people and relationships into one category does not make them the same or equal. Trying to fit same-gender relationships into the box of marriage may look like equality, but it is the pablum mush of misguided pluralism. Equality is not sameness—sameness is not equality.
He who frames the debate wins. Frame it in rights chatter, marginalize some voices (religious, historical, moral, etc.), dismiss others as speculative, and you will win every time. Rights win—and we all lose.
We seem not to be able to learn from past experience. In the early 1970s we set the legislative ball rolling to create “no fault” divorce. The arguments were that this was long overdue, that women, in particular, were trapped in unhappy relationships, and that very few people would be affected. Subsequently Canada has seen the number of successful marriages plummet, divorces skyrocket, poverty feminized, children single-parented, and men marginalized (85 percent of men lose custody disputes). We have created a divorce culture.
I daresay that there is not a person reading this who has not been directly or indirectly affected by our divorce culture—the genesis of which started with some minor legislative tinkering. While it was sold as affecting only a small group of unhappy people, it has in fact impacted every marriage in the nation. We took out of the marriage mystique the concept of lifelong covenant and replaced it with the simplicity of contract. What was supposed to affect the few has in fact affected just about everyone. What was a minor move from covenant to contract has profoundly changed the way we think about the institution itself. Prior to gay rights we were well on our way to trivializing the institution of marriage. With the developments that have occurred in the past few months, we have accelerated this very regrettable trend. No less a deconstructionist than Svend Robinson commented, when asked about his getting “married” now that it is “legal”: “Why do I need the state imprimatur to validate my relationship?”
Where do you get your values? There is the analogy of a web. The strands of marriage are, among other things, theological, sociological, generational, legal, and cultural. It is a fragile yet remarkably strong structure. You cannot detach strand after strand, however, and expect it to survive.
Collectively we have dismissed the religious as insignificant, and have limited them to being “those religious people.” The Court of Appeal in Ontario rendered the procreative potential of heterosexual unions as irrelevant to the public understanding of marriage. By bombing the intergenerational bridge (front and back), the courts have indeed succeeded in reducing marriage to the level of any other nonprocreative institution. Marriage as an institution is now nonprocreative. Does that mean there is now no point in getting married to be procreative (as in “We are going to have kids, so we decided to get married”)? Parents will now ask their children, “Why bother?” How do I answer my daughters, Sarah, Rachael, and Caitlin, when they say they want to get married? What’s the point? No less an authority than the Court of Appeal of Ontario has said there is no necessary connection between marrying and choosing to have children.
Every culture develops its unique ways of celebrating the exchanging of commitments between males and females. One of the reasons is to reinforce the notion that the covenant between the two is much larger than the couple themselves and extends to the community at large.
The community says to the couple, in effect, that they will protect the couple’s vulnerable flank because the “Mr. and Mrs.” are critical to the health and well-being of the community. They then proceed to develop a set of protective laws and institutions to encourage the marriage to flourish but also to protect the parties in the event of a breakdown. Does the same analysis, the same external commitment, apply when marriage is merely a free-choice contract between any two persons? When gays divorce there will be sadness, but unless the couple has gone on to adopt children, it will not have generational or societal impact. In the case of heterosexual divorce, especially when there are children, we know that all hell breaks loose. The larger society is diminished with each divorce, because the marriage reaches backward into previous generations and forward into future generations, hobbles the current generation, and ripples out into the wider community through various support mechanisms and government backfilling. None of that will occur with a gay divorce, because it is, in its essence, a “love institution,” unique to the parties themselves, and themselves only.
Marriage in the Western Christian tradition is a contract, a social estate, a spiritual association, and a participation in God’s own blessing of creating and
sustaining the human future.
As a secular state Canada has embraced the law of contract and diminished all other aspects. We are now reaping the whirlwind. Marriage and the family are in trouble today.
We get our beliefs and values from a wide variety of sources—some religious, some anthropological, some legal. A debate about marriage that restricts itself to a rights-based argument is a surrender that will ultimately be a great disservice to our society.
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John McKay is the member of Parliament for Scarborough East, Ontario, Canada. He is the vice chair of the Committee on Justice and Human Rights.
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1 Janet Somerville, in her letter to Bill Graham, MP,
Aug. 18, 2003.
2 Vandezande, in Justice, Not Just Us, 1999.
3 Vandezande, in “Public Justice Through Confessional Pluralism: Toward Reconciliation in a Divided World,” Social Work and Christianity Journal, p. 7.
4 Vandezande, in Justice, Not Just Us, 1999, p. 72.
5 See sections 121 and 122 of Court of Appeal ruling regarding Halpern et al. v. Attorney General of Canada et al., June 10, 2003.
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